Monday, September 10, 2018

On July 29, 1970 a lawsuit was filed in the Federal District Court for the Central District of California on behalf of Bartek Frykowski, a minor (age 12). The lawsuit sought one million dollars in general damages and one million dollars in punitive damages for the 'wrongful death' (murder) of Bartek's father, Wojciech Frykowski. The defendants were Charles Manson, Susan Atkins, Charles ‘Tex’ Watson, Patricia Krenwinkel and Linda Kasabian.

His attorney, Nathaniel J. Friedman, filed the complaint on behalf of young Bartek and simultaneously appointed Hanna Prominska to serve as guardian ad litem (guardian for purposes of the litigation) for Bartek. Friedman served Manson, Watson, Krenwinkel, Atkins and Kasabian while they were in various jails in Los Angeles and Texas.

After the lawsuit was filed and served, Manson, Atkins, Watson, Krenwinkel and Kasabian all filed answers to the complaint. Watson and Krenwinkel represented themselves. Kanarek appeared for Manson and Shinn represented Atkins. Fleishman answered on behalf of Kasabian.

On August 27, 1970 plaintiff filed a motion for summary judgment on the issue of liability. Friedman attached to his motion portions of the trial testimony of Kasabian and asserted there was no issue of material fact for a jury to decide as to whether the defendants were legally responsible for Frykowski’s death. After several delays that motion was granted by the court on February 9, 1971. The only issue that remained for trial was the amount of damages: how much money Bartek would receive.

In the end, only Manson and Atkins appeared at trial on July 29, 1971. No personal appearance occurred. Manson and Atkins were represented at the trial by two attorneys, Mary and Hugh Fielder. Watson, Krenwinkel and Kasabian were defaulted for failing to appear at trial.

Manson and Atkins waived a jury trial and the court decided the matter of damages after taking the testimony of several witnesses. A judgment for $500,000 was entered against all of the defendants making them ‘jointly and severally’ liable for the debt. In other words, any one of them could be required to pay the entire amount.

By 2003 that judgment had grown, with interest, to in excess of 2.7 million dollars.

The Defense Never Did Seem to Get It Right

On August 24, 1970 Kanarek filed an answer to the complaint for Manson. On August 28, 1970 Daye Shinn filed an answer to the complaint for both Manson and Atkins. You would think these two guys, seeing each other daily, could get something this simple, right, but apparently, not.

In the end this error didn’t matter but, of course, instead of simply accepting responsibility for the error when it came up at a later stage of the proceedings, Kanarek blamed Friedman.

Kanarek Will Be Kanarek

Kanarek disputed every claim in the complaint and reiterated his opposition in his response to plaintiff’s motion for summary judgment.

He denied Bartek was Frykowski’s ‘sole heir’ suggesting Frykowski may have been married at the time of his death.

He denied the claim was worth anything suggesting that Frykowski never supported his child. This may have been accurate, although claiming Frykowski’s death had no value was not a very good optic.

He even denied that Manson was a citizen of the state of California.

He also raised a classic Kanarek: he argued that California had no legal reciprocity with Poland because it was a communist country. Since Bartek was a citizen of that communist country, and thus a communist, Bartek could recover nothing.

None of this worked in the end.

No Defense, Again

Once Friedman filed the motion for summary judgment and relied upon Kasabian’s trial testimony to establish the facts showing the defendants were liable it was incumbent upon the defendants to submit counter affidavits. In other words, in order to avoid summary judgment on the issue of liability they had to submit an affidavit refuting Kasabian’s testimony. They didn’t.

Kasabian, of course, was caught in a legal, Catch-22. She couldn’t very well refute her own testimony without admitting she lied in the criminal trial. That, of course, would put her immunity deal in serious jeopardy. Fleischman was left with only one course of action: argue that the law didn’t support a finding of liability. He came up short. The judge sided with Friedman on that issue.

Watson didn’t respond to the motion. It is likely this was because by August, 1970 his attorneys were aware he was going to admit responsibility in his trial and claim diminished capacity as a defense.

Krenwinkel asked for more time and in the end submitted no opposition to the motion.

But the response of Manson and Atkins is a bit baffling. Shinn joined in Kanarek’s response and Kanarek made several legal arguments (those above) without any supporting affidavit.

Kanarek also argued that Manson couldn’t respond more fully because it would ‘prematurely’ reveal Manson’s defense in the criminal case and because Manson was too busy defending himself in that case.

To me this doesn’t make sense. First, while Kanarek’s response was filed on November 15, 1970, by the time the motion was finally heard by the court the defense, in the criminal trial, had ‘rested’ without putting on a defense. This was something noted by Friedman when they got there. Kanarek, after November 15th, could have amended his response and submitted an affidavit from Manson. But even as of November 15th how hard would it have been to submit an affidavit(s) by Manson and Atkins refuting Kasabian’s testimony? Weren't they claiming they were 'not guilty'? All Manson had to say to create an issue of fact was:

I never said ‘now is the time for Helter Skelter’.

I never said ‘go with Tex and do whatever he says’.

I never said ‘leave something witchy’.

I had nothing to do with the murders at Cielo Drive.

He wasn't at Cielo that night and this civil case wasn't about Helter Skelter it was about the murder of one person. All he had to say was that he had nothing to do with that night.

Isn’t that what Manson claimed ever since?

That simple document would have created an issue of fact and would not have impacted the defense Manson never raised. It is essentially what the ‘girls’ attempted to do, indirectly, in the penalty phase. But Kanarek did nothing.

One reason may be that Friedman was prepared to depose the defendants. On September 10, 1970 before the motion was heard by the court Friedman noticed Kasabian’s deposition. Unfortunately for us, he subsequently withdrew the notice without taking her deposition.

The Trial

The trial occurred on July 29, 1971. The sole issue was how much money Bartek would receive for the death of his father.

Friedman’s witness list appears at the right. An interpreter, fluent in Polish, was brought in for the trial.

Friedman submitted one exhibit at trial. It was a letter from Roman Polanski addressed ‘to whom it may concern’ dated December 18, 1967 (below, right). The letter confirms that Polanski was attempting to help his friend break into the movie business. It is also inadmissible in a courtroom.

Without Polanski being present there is no way to authenticate the document (prove it is real) and without Polanski it is also, hearsay. The amount of damages in the case turned on two factors. The financial benefit Bartek lost due to Frykowski’s death together with the monetary value of losing his relationship with his father. The letter appears to be the only evidence of Frykowski’s ‘financial benefit’ to Bartek. The witnesses don’t appear to really be in a position to testify to that issue. Nor does it appear that there was sufficient evidence of a relationship between Bartek and his father. Frykowski wasn’t going to return to Poland and from what I know he had very little contact with Bartek. I’m not sure how this adds up to $500,000. Punitive damages were not awarded.

Collection Efforts

Early in the trial Friedman attempted to push the case faster than the court’s regular docket. He wasn’t successful but the stated reason was his belief the defendants were going to receive royalties for literary works, which turned out to be true. Friedman spent the next thirty years trying to collect from those sources with some, limited, success.

On August 25, 1971 Friedman served an order for a judgment debtor’s exam on Leon Isaacson, Vice President of Beverley Hills Bancorp (New American Library, Inc.). The goal, here, was to intercept Atkins’ royalties for The Killing of Sharon Tate by Lawrence Schiller. He was too late. As the debtor’s response indicates, they had already paid all the royalties they were going to pay, about $17,000.

Friedman also attempted to sit Kasabian down for what is known as a judgment debtor’s exam on August 18, 1971 but was unable to serve her as she had already left California.

He subsequently obtained an order for a judgment debtor’s exam of Atkins on May 22, 1973. I am not sure what event triggered this effort. The file does not reveal what happened on that occasion but no partial satisfaction of judgment was entered in the court file in that time frame so nothing was collected as a result of the effort. But Friedman wasn’t done with Ms. Atkins.

On September 14, 1981 Friedman filed with the court for a writ of execution against Atkins. This time the target was her wedding ring. It appears from the file that on October 5, 1981 a ‘Lee Cox’ went to the California Institute for Woman, met with her and saw her wearing the ring but she refused to give it to him. Although my knowledge about executing on judgments is not great I have to wonder why Mr. Lee didn’t enlist the help of the guards to secure the ring since he had a valid writ.

The Geffen Records Satisfaction

On January 6, 1994 Friedman served a writ of execution on Geffen Records. This resulted in the payment of $72,608.26 on February 24, 1994. These were royalties owed Manson for the band, Guns and Roses’ recording of Manson’s song Look at Your Game, Girl, which appeared as a hidden track on the GnR album, The Spaghetti Incident?

A UPI story at the time states two interesting facts. First, it appears that Geffen Records contacted Friedman and asked him to serve a writ on them for Manson's royalties, estimated at $62,000 per million albums sold. The article also suggests that Geffen Records attempted to remove the song from the album. "Record executive David Geffen and other top representatives of the label have said they agree in principle with the objections by Tate and other opponents to the song.

However, Geffen President Ed Rosenblatt said the contract with Guns N' Roses forbids the company from deleting the track without the band's consent."

The Atkins Satisfaction

For unexplained reasons on August 20, 2000 Atkins paid $1,000 towards the judgment. There is no indication where Atkins acquired the money, nor is there any explanation why she paid it. The file discloses no collection efforts by Friedman at that time, suggesting it may have been voluntary. One possible explanation for the payment may be: parole hearings. It certainly would look better to pay something rather than nothing at all while funneling any profits from your books to a charity of your choice.

The Manson Satisfaction

On January 8, 2003 someone who owed Manson money paid $54,237 towards the judgment. Unlike the Geffen Records payment, this satisfaction does not identify a third-party debtor of Charles Manson.

There is no writ of execution, order for judgment debtor exam or other court document in the court file that would indicate the source of this payment. It could have resulted from a writ of garnishment (those are not filed with the court). But the question is then, who was served? Who was holding 54k for Manson in 2003? That answer is in the lawsuit United States of America vs. Bartek Frykowski and Nathaniel Friedman, below.

The ‘Confidential’ Satisfaction

The most interesting part of the file is the existance of the ‘dummy’ court docket in the image to the left. I was unable to determine what a ‘dummy docket’ is and personally, in my legal career, I have never heard of such a thing. There is no formal partial satisfaction of judgment for this $25,000 payment in the file. Someone, described only as ‘confidential’ claimed to be a debtor of Charles Manson and on September 22, 1995 paid $25,000 voluntarily on the judgment. The sum is odd, an even 25k. It raised the question who would have owed Manson 25k in 1995?

After a bit of searching, my legal assistant, whom I will call ‘Linda’ discovered the answer in another Manson-related lawsuit involving Bartek. On May 1, 1995 Friedman, on behalf of Bartek Frykowski, filed a separate lawsuit against Grove Press Inc. and Grove Atlantic Inc. seeking damages of $100,000 claiming Grove and Manson had engaged in a 'fraudulent conveyance'. Friedman alleged in the complaint that Grove knew about the judgment, obtaining the information from Nuel Emmons, author of Manson In His Own Words. He claimed that Grove then arranged with Manson for Manon's royalties to be paid to Grove, knowing Bartek would otherwise receive them. In other words, Grove and Manson conspired to defraud Bartek by making an end run around his judgment. If this is true compare Grove's actions to those of Geffen Records.The matter was dismissed by the court on October 2, 1995 one week after the satisfaction, above, was filed with the court. As a result we will never know if Friedman's claim was true.

Grove is the ‘confidential’ debtor and the 'confidential' status was likely part of a settlement agreement.

United States of America vs. Bartek Frykowski and Nathaniel Friedman

By far the strangest discovery by Linda, however, was a lawsuit filed by the United States of America (US) against Friedman and Bartek in March 2003. The suit claimed that the government had overpaid Friedman and Bartek Frykowski by the sum of $46,709.92. Friedman lost a motion for summary judgment filed by the United States and was ordered to repay $17,716.21, which he did. The claim against Bartek was dismissed because he was never served.

The court’s docket record from the decision on the motion for summary judgment on November 18, 2004, after finding against Friedman, says this:

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“However, the court DENIES the governments [sic] request to off-set funds received to date and accruing funds due to Mr. Frykowski until it recovers the full amount of the overpayment.”

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The US was asking the court to allow it to off-set funds accruing and owed to Bartek against the remaining balance of the overpayment alleged by the US to be 46k+. The request was denied for the same reason Bartek was dismissed from the case: he hadn’t been served. He was in Poland. The US never followed up but it appears that it did ‘block’ future payments to Bartek.

The lawsuit resulted from a clerical glitch in the US Marshall's office (USMS). On January 6, 1994 the US Marshall for the Central District of California served a writ of execution on Warner Music Group Services on behalf of Bartek seeking Manson's royalties from 'T-shirts and songs'. On July 27, 1995 the USMS served a writ on Bartelsmann Music Group for 7 million in damages owed to MCI by Charly Records from a trademark infringement case. On August 28, 1998 the USMS served a third writ on behalf of JEC International on Warner Services Group to intercept royalties owed Chaka Khan resulting from a judgment in favor of JEC for 250k for her breach of a contract. It appears from the complaint that Warner Services Group paid the $47,000 to the USMS in two checks. One was due MCI and and the other was due JEC on the non-Manson collection efforts. Someone at the USMS sent the money to Friedman. The Manson Satisfaction, above, likely results from these two checks plus an additional sum collected on behalf of Bartek from Warner Services Group and accurately paid to Friedman.

Following the motion for summary judgment Friedman engaged in some strenuous efforts to compel the US to disburse what is referred to in the court docket as the ‘blocked’ funds. The Estate of Bartek Frykowski sought to prevent the disbursement of the funds held by the US. Freidmen’s basis for seeking to compel the release of these funds was his lien: he was owed one third of any payments.

The court eventually resolved the issue on July 15, 2005 against Friedman and in favor of the Estate of Bartek. The court declined to order disbursement of the 'held' funds. The court’s docket record from that hearing also reflects this:

“Court further orders that Defendant Friedman provide copies of all documents in his possession pertaining to the case of Frykowski vs. Manson et al within 10 days of this order.”

On April 28, 2005 Alexander Volchegursky had substituted as attorney, replacing Nathanial Friedman. The substitution indicates that Volchegursky was now representing the Estate of Bartek Frykowski.

So, what did Friedman have in his file that Volchegursky wanted? I believe it is likely evidence of malpractice. That would also explain Volchegursky's efforts to prevent payment of Friedman.

A judgment is ‘good’ for ten years. Before the expiration of the ten-year period one can renew a judgment for another ten years. Freidman did this in 1981 and 1991. The Manson court file contains no further renewals of the judgment. This means that Bartek’s Estate’s judgment (by 2003 in excess of $2 million) ceased to exist in 2001. Absent some rule I am unaware of that might preserve the judgment, that would be malpractice, especially in light of the claims floating around that Manson's estate is worth a small fortune. (Danielle and Andy Mayoras. The Charles Manson Estate Battle: What Are They Fighting For? Forbes. January 16, 2018.)

Did the Wrongful Death Case Have any Impact?

Bartek or his estate at least received 2/3’s of all the sums paid or about $102,000.

The file also suggests that Charles Manson’s estate is not burdened by the judgment. The judgment appears to have expired in 2001. That means it no longer exists and cannot be collected. Unless there is something out there I don’t know or didn’t find, a claim cannot be filed against the Manson’s estate with any hope of collecting anything. That does, however, raise an ethical question for the heirs about what should happen to Manson's estate. A question I believe the combatants will ignore. Of course, we don’t know what agreements Friedman may have entered into with entities such as Geffen Records or Grove Press. Geffen Records actually asked Friedman to issue the writ against them when GnR recorded Look at Your Game, Girl. It could be that those entities agreed to pay any future royalties to Bartek without future collection proceedings. By one account The Spaghetti Incident? has sold 6.1 million copies world wide (https://chartmasters.org/2018/03/cspc-guns-n-roses-popularity-analysis). If this information and Geffen Records' estimate in 1993 are accurate that would have put Manson's royalties at $375,000.

We also learned that Linda Kasabian probably abandoned her book deal with Joan Didion because of this lawsuit. According to Kasabian she was to receive 25% of the profits for her story. Didion was to be the author and according to Didion portions of Didion’s book The White Album were drawn from her initial interviews of Kasabian.

It seems likely that once Kasabian realized that she was not going to actually ever see any part of the cash that she abandoned the project. I do have to wonder why Friedman never attempted to intercept any payments Kasabian received from her various TV appearances over the years. Maybe, she wasn’t paid or maybe the aging Friedman lost interest in the case. Or maybe they found a way to pay her without it appearing on the radar. To me that possibility is rather disconcerting. Did Kasabian say "Yup. I'll appear in that wig if you find a way to get me the cash without having to pay the judgment against me?" Did Bugliosi participate in such a scheme, a scheme known as a fraudulent conveyance? We likely will never know.

To me the lawsuit also tells us that at least one lawyer, Daye Shinn, was attempting to protect Atkins’ future royalties, which, of course would have paid his fees. Perhaps Kanarek mounted his defense for the same reason. The lawsuit also likely explains why Atkins’ books and Watson’s book did not result in actual payments to either of them to the best of my knowledge. Their effort to avoid paying the judgment by directing the profits to charities of their choice instead of to Bartek should tell you something about each of them, their jail-inspired Christian values and their acceptance of responsibility for the crimes. But that, together with the abandonment of the Kasabian project, I think, tells us something else about those three and especially Kasabian.

Lest we forget, before she testified Linda Kasabian had a book deal of her own.

Q (Fitzgerald): Are you to receive some money from the sale of this book, Mrs. Kasabian?

A: Yes.

Q: How much are you to receive?

A: I have no idea.

Q: have you been promised a certain amount of money in connection with the sale of your book?

A: Yes.

Q: How much have you been promised?

A: 25 percent of whatever comes in.

*****

Q (Shinn): Is someone writing a book on your behalf?

A: Yes.

Q: You stated her name was what?

A: Joan Didion.

(Testimony of Linda Kasabian at Tate-LaBianca. Cielodrive.com)

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Joan Didion was involved with Linda Kasabian before she ever took the witness stand. Didion purchased her trial dress for her at I Magnin. I Magnin is the same place Abigail Folger shopped almost one year to the day before Didion bought Kasabian’s dress from the same Beverley Hills store. Bugliosi also participated in the fashion decision. He rejected Kasabian’s first choice, “a long, white, homespun shift”.

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“Long is for evening he [Bugliosi] advised Linda. Long was for evening and white was for weddings.”

(Joan Didion. The White Album. Simon and Schuster. Page 45. 1979)

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Apparently, while the defense couldn’t get near Kasabian an author seeking interviews for a book deal, could.

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“On July 27, 1970, I went to the Magnin-Hi Shop on the third floor of I. Magnin in Beverly Hills and picked out, at Linda Kasabian’s request, the dress in which she began her testimony about the murders at Sharon Tate Polanski’s house on Cielo Drive. “Size 9 Petite” her instructions read. “Mini but not extremely mini. In velvet if possible. Emerald green or gold. Or: A Mexican peasant style dress, smocked or embroidered.”

(Joan Didion. The White Album. Simon and Schuster. Page 45. 1979)

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Over the years more than one person has castigated Bugliosi for being in the process of writing a book during the trial, even suggesting he made up the Helter Skelter motive for his book or that his book deal, at least, influenced his trial presentation. If you can make that argument then shouldn’t you also make the argument that a book deal may have played a factor in the state’s star witnesses’ performance at Tate-LaBianca? Maybe immunity plus a book deal helped Kasabian present her emotional testimony at that trial. It certainly was gone seven years later.

According to Linda Deutsch there was a marked difference between Kasabian’s demeanor and testimony at Leslie Van Houten’s 1977 trial compared to the Tate-LaBianca trial.

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“The witness offered none of the dramatic touches which marked her first testimony in the 1970 Tate-LaBianca trial. During that case, she sobbed frequently as she recalled the two nights of murder in which she drove the getaway car.

*****

Then her voice fading to a sleepy monotone, Mrs. Kasabian answered ‘yup’ and ‘nope’ to a series of questions about the two nights of death.”

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In fact, the DA, before that trial, could not find Kasabian. She was no longer in New Hampshire where the DA expected to find her. She had disappeared. She was, in today’s vernacular, off the grid. Admittedly she had left town in part because she had been arrested near her home town, Milford, New Hampshire, for inciting a riot the previous year (the bonfire incident).

When she was eventually found in Florida, she was arrested (as a material witness) and extradited to California where she appeared before the court and agreed to return for the trial (likely, after being reminded about the terms of her immunity deal).

Was that all because by 1977 she was just tired of it? At the time, Stephen Kay claimed she was afraid of Family revenge. One has to ask in 1977 who was around to seek that revenge? Or was it because the promise of cash from a book deal evaporated on July 29, 1971 when a judgment was entered against her for $500,000? A judgment, I would add, she has made absolutely no effort to pay, despite those TV appearances and her supposed feelings of responsibility. I think it was the latter.

We have been told that Linda Kasabian was the one true flower child according to some. She has also been called the ‘innocent hippie’. She claimed that she was 'ordained' to tell the truth. She stated that she felt so compelled to speak the truth that she would have testified without immunity.

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“From the start Fleischman, dedicated to the welfare of his client, had wanted nothing less than complete immunity for Linda Kasabian. Not until after I had talked to Linda myself did I learn that she had been willing to talk to us immunity or not, and that only Fleischman had kept her from doing so. I also learned that she had decided to return to California voluntarily, against the advice of Fleischman, who had wanted her to fight extradition.”

*****

“We did grant Linda one special privilege, which might have been called a “bonus.” On the three occasions we took her out of Sybil Brand, we let her call her mother in New Hampshire and talk to her two children. Her attorney paid for the calls. Though Angel was only a month old and much too young to understand, just speaking to them obviously meant a great deal to Linda.

Yet she never asked to do this. She never asked for anything. She told me not once but several times that although she was pleased to be getting immunity, because it meant that eventually she could be with her children, it didn’t matter that much if she didn’t get it. There was a sort of sad fatalism about her. She said she knew she had to tell the truth about what had happened, and that she had known she would be the one to tell the story ever since the murders occurred. Unlike the other defendants, she seemed burdened with guilt, though, again unlike them, she hadn’t physically harmed anyone. She was a strange girl, marked by her time with Manson, yet not molded by him in the same way the others were.”

Linda Kasabian also testified that she felt responsible for the murders at Cielo Drive.

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Q: (Kanarek): I see, and is your state of mind such that you were not responsible for any one passing away the night before?

A: Yes, I feel responsible.

Q: You feel responsible for the killings?

A: Yes.

Q: Correct. The night before?

A: Yes.

(Testimony of Linda Kasabian at Tate-LaBianca. Cielodrive.com)

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Taken together the inference is that Kasabian’s feelings of responsibility for the deaths of Sharon Tate, Abigail Folger, Jay Sebring, Steven Parent and, of course the subject of this post, Wojciech Frykowski, drove her to tell the truth about what happened that night.

If Kasabian really wanted to tell the truth and accept responsibility for her part in the murders why make no effort to pay the judgment? Why defend the lawsuit filed by a child whose father you watched being slaughtered, literally ten feet away from where you stood?

The key impact of both crimes is that Conspiracy to Commit Murder and Felony Murder do not require the defendant to actually kill anyone or even be present when someone is murdered to be guilty of murder. That, of course, rather obviously is directed at Charles Manson.